Court File and Parties
COURT FILE NO.: CV-15-541668 DATE: 20160812 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: STEVEN BRESNARK, Plaintiff AND: THOMSON REUTERS CANADA LIMITED, Defendant
BEFORE: Justice Glustein
COUNSEL: Steven Bresnark, self-represented Brian MacLeod Rogers, for the Defendant
HEARD: August 10, 2016
Reasons for Decision
Nature of motion and overview
[1] The plaintiff, Steven Bresnark (“Bresnark”), and the defendant, Thomson Reuters Canada Limited (“TR”), bring motions for summary judgment under Rule 20 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”), in relation to a libel and breach of privacy claim brought by Bresnark (the “Action”) in relation to an article entitled, “Unlicensed paralegal uses Small Claims Court to commit fraud”, published by TR on its “Law Times” website on August 13, 2012 (the “Article”).
[2] Pursuant to Rule 21, TR also seeks to strike Bresnark’s claim for breach of his right to privacy, as disclosing no cause of action.
[3] The Article reported on an order of Deputy Judge Ashby (“DJ Ashby”) in Toronto Small Claims Court in Court File No. SC-07-54681-0000 (the “SCC Action”). DJ Ashby held that Bresnark fraudulently obtained $50,000 through the proceedings in the SCC Action against John Lane (“Lane”). The Article also reported on the motion materials filed on behalf of Lane in the SCC Action, which set out how the fraud was alleged to have occurred.
[4] The Article also referred to a 2008 criminal conviction against Bresnark (cited as R. v. Bresnark, 2008 ONCJ 10) by a decision of Justice M.E. Lane of the Ontario Court of Justice dated January 14, 2008 (the “OCJ Conviction”). Justice Lane convicted Bresnark on seven counts of filing false income tax returns for himself and others and sentenced Bresnark to “two years less a day in the reformatory and a period of probation for three years, concurrent on all charges”.
[5] In response to the Bresnark motion for summary judgment, and in support of its own motion for summary judgment and to strike Bresnark’s privacy claim, TR relies on the following submissions:
(i) The Action is statute-barred as it was issued on December 1, 2015, more than three years after the Article (and more than two years after any comments on the Article) were published on the Law Times website;
(ii) The Article is protected by a qualified privilege for fair and accurate reports of judicial proceedings;
(iii) Even if the opinions in the Article or the comments were defamatory, the defence of fair comment applies;
(iv) If it were found that the Article was not a fair and accurate report of a judicial proceeding, it would still be protected by the defence of responsible communication;
(v) Insofar as the Article and comments meant and were understood to mean that Bresnark was found to have acted fraudulently by DJ Ashby in the SCC Action and was found guilty in the OCJ Conviction of seven counts of attempting to obtain income tax refunds by making false statements, those statements were true in substance and fact;
(vi) Section 137.1 of the Courts of Justice Act, RSO 1990, c. C.43 applies and as such the Action should be dismissed as the proceeding arises from an expression made by a person that relates to a matter of public interest and there are no grounds to believe that (a) the proceeding has substantial merit, (b) there is no valid defence to the proceeding or (c) the harm likely to have been suffered by Bresnark as a result of TR’s expression is sufficiently serious such that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression; and
(vii) There is no constitutional or other privacy right engaged by the Action.
[6] For the reasons below, I grant TR’s motion for summary judgment and to strike the privacy claim, and, as such, I dismiss the Action. I dismiss Bresnark’s motion for summary judgment.
[7] There is no genuine issue requiring trial that (i) the Action is statute-barred; (ii) the Article was a fair and accurate reporting of the SCC Action and OCJ Conviction; and (iii) no Charter or other privacy right is engaged by the Action.
[8] Consequently, I do not address the other submissions relied upon by TR, as they are not necessary to these Reasons.
Analysis
[9] I first review the applicable law for summary judgment and then apply those legal principles and the relevant evidence to the issues I set out at paragraph 7 above.
i) The applicable law for summary judgment
[10] The applicable principles on summary judgment are set out in Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”) and Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (“Sweda Farms”), affirmed 2014 ONCA 878.
[11] In Hryniak, the applicable principles are as follows (Hryniak, at paras. 3, 47, 49, 50):
(i) A court shall grant summary judgment where there is no genuine issue requiring a trial; and
(ii) There is no genuine issue requiring a trial when the motions judge is able, on the motion, to reach a fair and just determination on the merits. This will be the case when (a) the judge is able to make the necessary findings of fact; (b) the judge is able to apply the law to the facts; and (c) the proceeding is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial.
[12] In Sweda Farms, Corbett J. reviewed the process by which the court considers whether summary judgment is appropriate. He stated (Sweda Farms, at para. 33):
The court on a motion for summary judgment should undertake the following analysis:
The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
If the court cannot grant judgment on the motion, the court should:
a. Decide those issues that can be decided in accordance with the principles described in 2) above;
b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
[13] I now apply these principles to the issues I set out at paragraph 7 above, and consider the evidence relevant to those issues.
ii) Issue 1: The limitations period defence
[14] TR submits that based on the evidence filed for the motion, there is no genuine issue requiring trial that the Action is statute-barred. For the reasons that follow, I agree with TR’s submission.
[15] TR does not rely on the shorter limitation period under ss. 5(1) and 6 of the Libel and Slander Act, RSO 1990, c. L.12 (“LSA”), since even if the LSA does not apply to internet postings, more than three years have passed since the Article was published and more than two years since the last comments were posted.
[16] In Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 (“Shtaif”), the Court of Appeal held that the shorter three-month limitation period under the LSA applied to the print claim. As the internet claim raised issues of discoverability that needed to be addressed at trial (Shtaif, at paras, 47-48), the applicable limitation period for internet publication was not decided.
[17] However, at a minimum, the limitations period under s. 4 of the Limitations Act, 2002, SO 2002, c. 24, Sch. B (“Limitations Act”) applies and requires an action to be commenced within two years after the claim was discovered. The common law principle of discoverability is incorporated into the Limitations Act, based on the presumption that the claimant would have known the requisite elements for a claim “on the day the act or omission on which the claim is based took place, unless the contrary is proved” by the claimant (s. 5(2) of the Limitations Act). The test of discoverability is based on determining when “a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known” of his claim (s. 5(1)(b) of the Limitations Act) (see also Brown v. Wahl, 2015 ONCA 778, at paras. 10-15).
[18] Bresnark submits that either (i) there is no genuine issue requiring trial that he did not know of the Article until June 2015, when he sent an email to TR asking it to be taken off the Law Times website or (ii) at a minimum, there is a genuine issue requiring trial as to when he discovered or ought to have discovered the Article. However, the evidence does not support a genuine issue requiring trial on this issue.
[19] Bresnark swears in his affidavit that he “only became aware of the libel complained of in June, 2015”. However, that assertion does not raise a genuine issue requiring trial in the face of overwhelming evidence that Bresnark (i) was aware of the Article in August 2012 when it was published on the Law Times website, and (ii) vociferously complained of it to the Law Times editor, Glenn Kauth (“Kauth”) by voice-mail message on August 15, 2012.
[20] TR filed affidavits from Siobhan McClelland (“McClelland”) the author of the Article, Kauth, the editor of the Law Times at the time the Article was published on the Law Times website, and Gail Cohen (“Cohen”), the current Editor-in-Chief of Law Times and Editor-in-Chief at the time the Article was published on the Law Times website. All of these individuals had knowledge of the events surrounding the publishing of the Article in August 2012, and either direct or corroborating evidence of Bresnark’s voice-mail complaint to Kauth on August 15, 2012.
[21] Kauth had direct knowledge of Bresnark’s voice-mail message. His evidence was that:
On Wednesday, August 15, 2012, two days after the Article was published, I received a voicemail message from Steven Bresnark concerning the Article. In the message, he said the Article was ‘bullshit’ and took particular issue with the suggestion made at the very end of the Article that a report had been filed with 32 Division of the Toronto Police Service. He made it clear that he was very unhappy with the Article, and he threatened legal action.
[22] Kauth’s evidence is supported by his conduct after the voice-mail. On August 15, 2012, the same day as the voice-mail message, Kauth sent an email to McClelland in which he stated that “I’ve just heard from Steven Bresnark, who’se [sic] not happy with the article (not surprisingly). He’s saying the article is ‘bullshit’ but is particularly taking issue with the idea that a report has been filed with 32 Division. He is, of course, threatening legal action”.
[23] Kauth’s evidence, supported by McClelland, is that Kauth followed-up and spoke with McClelland about the Article on August 15, 2012, and that McClelland provided Kauth with copies of the material she obtained to write the Article and additional background documents. Further emails from McClelland to Kauth, dated that same date, confirm that McClelland provided the information Kauth requested.
[24] On August 15 and 16, 2012, Kauth also contacted by email Jonathan O’Hara (“O’Hara”), a lawyer at McMillan LLP, who was named in the Article and had acted for Lane in the SCC Action referred to in the Article. Kauth asked O’Hara about the police report filed concerning Bresnark that was referred to in the Article and information about the SCC Action. The emails from Kauth and O’Hara have been produced and demonstrate Kauth’s efforts to respond to the concerns raised by Bresnark.
[25] Kauth’s evidence, confirmed by Cohen, is that “at the time, I discussed the original complaint and the results of my efforts with [Cohen]”.
[26] Further, McClelland’s affidavit evidence confirms that she discussed the issues raised by Bresnark with Kauth at the time and that “I provided [Kauth] with all the background information that I had available”. McClelland’s emails to Kauth, dated August 15 and 16, 2012, confirm such discussions.
[27] Similarly, Cohen’s affidavit evidence is that “I recall discussions with Mr. Kauth in August 2012 following publication of [the Article] and “a few days after [the Article’s] publication on August 13 … Mr. Kauth discussed the complaint with me”.
[28] Further, the evidence is uncontested that the Law Times website has a detailed “contacts” page that would have enabled Bresnark to know Kauth’s telephone contact information.
[29] Bresnark submits that the court should find that he did not leave the voice-mail message. Bresnark submits that he brought the Action in December 2015 soon after he discovered in June 2015 that his name had been published on the Google search engine. Bresnark submits that it is a reasonable inference that he did not know of the Article in August 2012 because he issued the Action shortly after his June 2015 email to Kauth in which Bresnark asked TR to remove the Article since “my name has been published on the google.ca search engine”.
[30] However, that argument is not logical. There is no genuine issue requiring trial since the fact that Bresnark complained about his name being on a Google search in June 2015 does not demonstrate that he did not know of the Article in August 2012. The June 2015 complaint is equally (if not more) consistent with an inference that Bresnark knew and complained about the Article in 2012, but took no steps to seek its removal from the Law Times website until he learned that information about him “has been published on the google.ca search engine”.
[31] Further, the record demonstrates that Bresnark was involved in several appeals before the Court of Appeal in 2013, and is additional support that Bresnark was occupied with other litigious matters during the two-year limitation period.
[32] Most importantly, given the overwhelming documentary and affidavit evidence that Bresnark complained to Kauth about the Article on August 15, 2012, the inference which Bresnark asks the court to draw is not reasonable and does not support a genuine issue requiring trial (let alone a finding on summary judgment in Bresnark’s favour) that he did not know of the Article until June 2015.
[33] On the above evidence, I find that Bresnark knew of the Article immediately after it was published on the Law Times website and contacted Kauth on August 15, 2012 to complain about the Article. There is no genuine issue requiring trial as to his knowledge. It is not credible that Kauth would have fabricated emails and sought the involvement of three different people (the author of the Article, Editor-in-Chief, and a lawyer involved in the SCC Action) for no reason. There is no logical reason for Kauth to have taken the steps that he did unless he received a complaint from Bresnark.
[34] While I make no finding that Bresnark intentionally misled the court on this motion with respect to his evidence, there is no genuine issue requiring trial on the issue.
[35] For the above reasons, the Action is statute-barred.
[36] While not necessary given my above findings, even if Bresnark could establish that he did not know of the Article until June 2015 (which I do not accept), Bresnark led no evidence to demonstrate why he could not have learned of the Article in the three-year period from its publication on the Law Times website. That deficiency as well would be sufficient to find no genuine issue requiring trial on the limitation period.
iii) Issue 2: The fair and accurate reporting privilege
[37] Bresnark acknowledged at the hearing that he took no issue with the fairness or accuracy of the Article. Rather, his submission was that DJ Ashby had erred in his decision ordering that (i) Bresnark was required to repay over $50,000 as a result of “obtaining property through false pretenses and fraudulent misrepresentations”; (ii) the SCC Action was a “fraud on the Court”; and (iii) Bresnark was “personally liable” to pay the defendant $25,000 in costs “in light of the fraud of Mr. Bresnark”.
[38] Bresnark submits that DJ Ashby erred by (i) relying upon false evidence, (ii) not providing Bresnark a fair opportunity to be heard, and (iii) making an order when Bresnark was not a party to the SCC Action.
[39] However, the merits of the decision of DJ Ashby (on which I make no finding) do not raise a genuine issue requiring a trial with respect to the privilege accorded to fair and accurate reports of judicial proceedings.
[40] It is settled law that “where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open court, then the publication without malice of a fair and accurate report of what takes place before that tribunal is privileged” (Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130 (“Hill”), at paras. 150-51).
[41] Bresnark makes no allegation that TR acted with malice, or that any part of the Article did not fairly or accurately report on the SCC Action or the OCJ Conviction. A review of the Article demonstrates that it is a fair and accurate report of those proceedings.
[42] Consequently, on this ground as well, the Action is dismissed. The privilege applies on the evidence in this case.
iv) Issue 3: There is no common law or s. 7 privacy right at issue in this case
[43] Bresnark did not submit that a limitation defence would not be available to TR for his claim of a breach of his right of privacy. Consequently, the above analysis on limitation grounds would be sufficient to dismiss the Action.
[44] However, I agree with TR’s submission that in any event, it is plain and obvious that Bresnark has no claim against TR for any breach of Bresnark’s right of privacy.
[45] Bresnark’s claim under s. 7 of the Canadian Charter of Rights and Freedoms cannot stand. It is settled law that “Private parties owe each other no constitutional duties and cannot found their causes of action upon a Charter right” (Hill, at para. 95).
[46] Further, I accept TR’s submission in its factum that no common law tort of invasion of privacy or “intrusion upon seclusion” could be founded on the facts as alleged:
Further, recent developments in the common law regarding invasion of privacy have fallen well short of the cause of action asserted by Bresnark. On the facts of this case, there is no ‘intrusion upon seclusion’, nor even any disclosure of ‘private facts’. Indeed, the Article is wholly based on public court proceedings and the facts and findings disclosed on the record in those cases. Therefore, the cause of action asserted in paragraph 4 of the statement of claim should be struck as disclosing no cause of action. It is plain and obvious that it has no chance of success.
[47] (See also Jones v. Tsige, 2012 ONCA 32, at paras. 45-46, 65, 70-73.)
[48] Consequently, I strike this privacy claim as disclosing no reasonable cause of action.
Order and costs
[49] For the above reasons, I grant TR’s motion for summary judgment and to strike Bresnark’s privacy claim. Consequently, I dismiss the Action. I also dismiss Bresnark’s motion for summary judgment.
[50] TR sought partial indemnity costs of $15,000 which I find reasonable given the voluminous material filed on the motion, the detailed factums provided, and the legal research required to address all of the issues. Bresnark did not oppose the quantum sought, but only advised the court that he could not pay any costs award due to his financial circumstances (which were not in evidence in the motion material).
[51] TR is entitled to an order for costs given its success on the motions, payable forthwith.
[52] Consequently, I fix costs on a partial indemnity scale at $15,000 (inclusive of taxes and disbursements), payable by Bresnark to TR within 30 days of this order.
GLUSTEIN J.
Date: 20160812
[1] The analysis in this section is taken verbatim from my reasons in PCL Constructors Canada Inc. v. Global Events Management Group Inc., 2016 ONSC 689, at paras. 9-11.